1. It is possible for circumstantial evidence to outweigh in probative value direct testimony inconsistent therewith, although the testimony of the witness be not otherwise impeached. Whether or not the circumstantial evidence here was both consistent with the conclusion reached and inconsistent with every other reasonable hypothesis as established by a preponderance of the evidence was a jury question. Where it appears that such evidence tends in a proximate and reasonable degree to establish the negligence of the defendant, and to render less probable an inconsistent hypothesis, the appellate court will not interfere with the verdict. The general grounds of the motion for new trial here urged on the basis that the plaintiff's evidence, which was circumstantial, was legally insufficient to show that his injuries were caused by operation of a truck belonging to the defendant, are without merit.

2. Where the plaintiff alleged negligence against the defendant in the use of wooden standards to hold a load of lumber on the trailer of his truck, and it was proved that one of such standards broke off and injured the plaintiff, it was not error on cross-examination of the defendant to ask him questions relative to the comparative strength and safety of wooden and steel standards.

3. The negligence of the defendant's servant, if any, being imputable to him under the undisputed pleadings and evidence, there was no error in a reference by the court in his charge to the "negligence of the defendant", rather than "negligence of the driver of defendant's vehicle."

4. The charge on the subject of damages, although inaccurate in part, was more favorable to the complaining party than he deserved, and, as against him, showed no reversible error.

DECIDED JUNE 17, 1957.

Spencer Shirah filed an action for damages for personal injury in the Superior Court of Bacon County against Harold Chancey, owner of a certain Mack truck, alleging: that the plaintiff was traveling north on U.S. Highway No. 1 approximately 1 mile north of the city limits of Folkston and shortly before midnight, driving a 1949 Ford truck when he met defendant's truck, driven by his agent, and to the cab of which was attached a tandem trailer loaded with a cargo of lumber supported at the sides by wooden standards and steel chains; that the lumber had shifted in the trailer and forced the left standard into an almost horizontal position protruding into the plaintiff's lane of traffic; that as the trucks passed this standard struck the mirror on the left side of the plaintiff's truck and caused severe and permanent injuries to his arm; that the defendant was negligent in stacking the load of lumber, in using wooden standards which would easily break, and the agent was negligent in failing to make proper inspection, in continuing to operate the truck after this condition arose, in driving too close to the middle of the highway when meeting another vehicle, and in driving across the center lane of travel. On the trial the plaintiff supported by evidence the allegations of fact above set out, and further testified that he recognized the vehicle he met as a Mack truck loaded with lumber; other than that he could tell little about it. The impact occurred as the trailer of the truck passed his cab. The mirror had been pulled back so that it was not projecting from the side of the vehicle. When the plaintiff stopped, he noticed a lumber two-by-four lying in the center of the highway.

About two hours later, the defendant's lumber truck was located halted for repairs about four miles south of Folkston. The load of lumber on this truck had shifted to the left and three wooden two-by-four standards were broken off from the left side and missing. The sheriff who examined the vehicle removed the stubs and compared them with the splintered remains of three two-by-fours which he located in the highway at a place the identity of which tallied with the plaintiff's description of the point of impact. Comparison of the pieces of wood satisfied the witness that they corresponded in material, size, wood grain, etc., and these exhibits were introduced in evidence. The defendant's driver admitted proceeding along this point on the night in question, but contended that he arrived at Folkston nearly an hour before the time of impact as testified to by the plaintiff; that his lumber was in proper condition at that time, and that the load shifted and the standards broke off somewhere south of Folkston over a piece of particularly rough road.

The jury returned a verdict in favor of the plaintiff. The defendant filed his motion for new trial on the general grounds which was later amended by the addition of three special grounds, and the denial of this motion is assigned as error.

TOWNSEND, J.

1. It is strongly contended that the evidence, being circumstantial, and being in conflict with the direct testimony of the driver of the defendant's truck, is insufficient to support the verdict on the general grounds, as the plaintiff has failed to show that the truck by which he was injured belonged to the defendant. The rule to be applied by the appellate court in testing whether or not circumstantial evidence offered in the trial court is insufficient as a matter of law to support a verdict on some particular issue in the case is as follows: "When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions." Georgia Ry. Electric Co. v. Harris, 1 Ga. App. 714, 717 ( 57 S.E. 1076); Armour Co. v. Gulley, 61 Ga. App. 414 (2) ( 6 S.E.2d 165). In the trial court the jury must decide whether the circumstantial evidence is not only consistent with the conclusion reached but also inconsistent with every other reasonable hypothesis, as established by a preponderance of the evidence. Herman v. Aetna Casualty Surety Co., 71 Ga. App. 464 ( 31 S.E.2d 100). In the appellate court, it must appear that the circumstances proved tend in some proximate and reasonable degree to establish the conclusion claimed and render less probable all inconsistent conclusions. Ladson Motor Co. v. Croft, 212 Ga. 275 ( 92 S.E.2d 103). In neither case is it necessary that such evidence be inconsistent with all other reasonable theories beyond a reasonable doubt or to the point of logical demonstration. Dodd v. Callaway, 76 Ga. App. 629 ( 46 S.E.2d 740). The rule must be observed that where a finding of fact may be inferred but is not demanded by circumstantial evidence, it will not support a verdict when by the positive and uncontradicted testimony of an unimpeached witness perfectly consistent with the circumstantial evidence, it is shown that no such fact exists. Myers v. Phillips, 197 Ga. 536 ( 29 S.E.2d 700). This is for the reason that evidence which equally supports two theories proves neither. For circumstantial evidence that a fact exists to have probative value against direct and unimpeached evidence that the fact does not exist, such evidence "must point at least more strongly to a conclusion opposite to the direct testimony." Griffin v. Blackshear Bank, 66 Ga. App. 821, 825 ( 19 S.E.2d 325). Here it cannot be said that the testimony of the defendant's driver is perfectly consistent with the circumstantial evidence, in view of the pieces of wood introduced in evidence and direct testimony that the stubs found on the defendant's truck matched the wood splinters found on the highway at a point where the jury was authorized to find the impact occurred. The defendant testified his standards were in perfect condition when he stopped after having passed this point. The circumstantial evidence rule does not mean that the testimony of a witness can never be disproved except by the direct contradictory testimony of another witness. Here the jury was authorized to believe that the wood found in the road came from the defendant's truck; if it did believe this fact a conclusion was demanded that the standards had torn loose prior to the time this witness said he last checked them. Evidence that the defendant's truck was responsible for the plaintiff's injury is, accordingly, sufficient to support the verdict on this issue, although the plaintiff could not positively identify either the truck or its driver. The general grounds of the motion are without merit.

2. The plaintiff alleged that the use of wooden standards was negligence, and there was considerable testimony in the record that using wooden standards to hold the lumber in the truck in place was not a safe practice. The plaintiff's attorney, in his cross-examination of the defendant, attempted to force him to admit that steel standards would have been stronger and relatively inexpensive. In view of the freedom allowed on cross-examination generally, it was not error, after asking the defendant how much weight a wooden standard would support, to inquire whether it would be possible for a man to break a steel standard by leaning against it. In point of fact it does not appear from this special ground that the witness ever completed his answer to the question. This ground is without merit.

3. The plaintiff here sought recovery against the defendant owner of the truck only, on grounds of negligence which were the personal acts of the owner and other grounds which were the acts of the owner's servant within the scope of the master's business. Thus, both classes of negligence alleged referred to negligence of the defendant, either direct or imputable to him through the acts of his servant. Code § 105-108. No issue being made on the trial of the case but that the driver was the servant of the defendant, and that his negligence, if it existed as alleged, was imputable to the defendant, there was no error in referring in the charge to "negligence of the defendant" instead of "negligence of the defendant's driver." Special ground 2 is without merit.

4. A portion of the charge on damages is excepted to on the ground that it authorized recovery for an item not sought by the plaintiff in his pleadings (future pain and suffering); that a charge was given on decreased capacity to labor while damages for this were not sought by the pleadings; that loss of future earnings and loss of future earning capacity were not distinguished and the court did not submit to the jury the question of loss of future earnings; because the charge gave the jury the right to return a verdict not in accordance with evidence as to loss and expenses but any sum they saw fit in their enlightened consciences, and that he unduly emphasized the right of recovery for pain and suffering. The court charged that the amount of damages should compensate for injuries received, that hospital and doctor bills should be taken into consideration, and that elements of future pain and suffering and impairment of ability to labor in the future, when found, must be reduced to present cash value, and the court nowhere charged that there could be a recovery for loss of future earnings. Impairment of ability to labor is of course a part of pain and suffering and need not be reduced to present cash value. Southern Ry. Co. v. Bottoms, 35 Ga. App. 804 (2) ( 134 S.E. 824). This charge, and the failure of the court to charge that there might be a recovery for lost earnings in the future were error but harmful only to the plaintiff. Since the plaintiff alleged that he would continue to suffer physical impairment and pain and suffering throughout life, and prayed for $8,000 because of the "pain and suffering sustained by petitioner by virtue of said injuries" it cannot be said that a charge on future pain and suffering was unwarranted, or that a charge on impairment of the capacity to labor as a part of pain and suffering was erroneous. There was no demurrer to the pleadings, which raised this issue, by implication at least. Further, the evidence in the case was to the effect that the plaintiff had suffered a permanent physical disability which prevented him from continuing to engage in the occupation of long-haul driver as he had done up until the infliction of the injuries. Thus, this issue was clearly made by the evidence. It is frequently held not erroneous for the court to give in charge to the jury a contention of a party as made by the evidence, although such contention was not made in the pleadings. Davis v. McDuffie, 35 Ga. App. 786 (4) ( 134 S.E. 800). The charge, "The guide for fixing damages, if any, for pain and suffering, or diminished capacity to labor, as distinguished from earning capacity, is the enlightened consciences of impartial jurors" is in the same language as the charge in Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 61 ( 60 S.E.2d 770), and was there held not subject to the objections urged against it.

The objections of the plaintiff in error are accordingly without merit. This charge did not, as in Southern Grocery Stores v. Smith, 59 Ga. App. 631 (1) ( 1 S.E.2d 762), leave the entire question of damages to the enlightened consciences of the jury. It instructed them "to take into consideration any hospital bills or doctor bills" and that the amount "should compensate for the injuries received." No part of the charge authorized a recovery on issues not raised by the pleadings and evidence. If, as contended, the court did not submit to the jury the question of loss of future earnings, this harmed only the plaintiff, and the same is true of the other inaccuracies in the charge on reducing amounts found for pain and suffering to present cash value, which were not harmful as against the defendant. Accordingly, no reversible error is shown here.

The trial court did not err in denying the amended motion for new trial.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.